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Fifty-one percent of EPs have been sued during their career, according to a recent report on medical liability claims frequency, the third highest percentage of all the specialties examined by the study’s authors.1
Frequency of liability claims varies greatly between specialties, according to the report. Emergency medicine was the third most frequently sued specialty, after general surgery (63%) and obstetrics/gynecology (64%), compared with 34% of physicians overall.
After years of increasing frequency and payouts, “there was a decrease, and there is now a stabilization of claims overall,” reports P. Divya Parikh, vice president of research and risk management for PIAA, a Rockville, MD-based industry trade association representing medical professional liability insurers. Parikh credits this change in part to risk management and patient safety efforts in the ED setting. “In the past few years, there has been notable attention on emergency medicine,” she notes.
Between 2006 and 2015, 1,623 emergency medicine claims were reported to PIAA. The average indemnity payment was about $400,000 during the first five years of that period, but has decreased in recent years to about $315,000.
The top allegations in PIAA’s ED claims: diagnostic error, improperly performed procedures, medical errors, and failure to supervise or monitor. The most common medical outcomes involved in the claims are cardiac and cardiac respiratory arrest, acute myocardial infarctions, aortic aneurysms, occlusion and stenosis of cerebral artery, and encephalopathy.
While the National Practitioner Data Bank includes only closed claims with an indemnity payment, PIAA’s database also includes claims that resulted in no payment. About 75% of the ED claims fell into this category. However, EPs named in these claims still incurred defense costs. In the 2006-2010 period, these averaged $46,700, but are now closer to $55,000.
“The higher costs suggest that plaintiff attorneys took on complex ED cases that were difficult to try,” Parikh offers.
Notably, about 67% of the emergency medicine claims were dropped, withdrawn, or dismissed. About 17% were settled, about 10% resulted in a verdict for the defendant, 3% resulted in a plaintiff verdict, and the rest are attributed to alternative dispute resolution contracts.
“Cases against ED physicians are often rooted in a failure to detect or adequately treat a condition that later escalates,” says Timothy D. Patterson, JD, an attorney at Richmond, VA-based Hancock Daniel.
Plaintiffs’ lawyers must be certain they have evidence of causation. A common allegation is that had the EP performed a different test or admitted the patient, it would have changed the outcome.
“ED cases are susceptible to Monday morning quarterbacking. So, plaintiff’s lawyers need a strong causal link to have a good case,” Patterson explains. Since plaintiffs’ lawyers also want some assurance of a sizeable recovery, usually only cases that entail significant injury or damages are pursued.
“Obtaining early expert reviews in the pre-litigation process helps plaintiffs’ lawyers assess their chances of prevailing at trial, and determine what their case is worth,” Patterson notes.
For example, early review by an emergency medicine expert might reveal that a particular test or assessment would only be performed upon admission, not in the ED. “That information, if discovered early, may alert plaintiffs’ lawyers to a weakness in their case,” Patterson says. This could result in a decision not to pursue the litigation, or to direct their case away from the ED care.
On the other hand, an early ED expert review could convince the plaintiff that the case is strong.
“It might identify abnormal lab values or other indicators, which, if noticed and treated in the ED, may have changed the patient’s outcome,” Patterson explains.
EPs diagnose patients previously unknown to them, often with co-morbidities and an incomplete medical history, in a chaotic environment. “Because of these realities, ED cases may be the most difficult and expensive cases to handle — and, more importantly, the most difficult to prove,” says Karen W. Poole, RN, JD, senior professional liability nurse consultant at Memphis, TN-based Sedgwick Claims Management Services.
Most attorneys reject more than 90% of the malpractice cases they screen, and won’t accept a case unless expected damages are at least $250,000 if they believed winning is certain, or double that amount if the outcome was less certain, researchers discovered.2
“Potential clients often present with heart-wrenching stories about their experience at the ED. It is natural for the attorney to desire to help the client,” Poole notes.
Making the wrong decision is costly for the attorney and plaintiff, both financially and emotionally. “Most people do not realize that plaintiffs’ lawyers pay the case expenses for these lawsuits,” says Poole, noting these expenses include filing fees, medical record copy costs, issuing subpoenas, and expert witnesses for depositions and in court. “In a medical malpractice case, an attorney automatically budgets for $85,000 to $250,000 in expenses.” If the case is lost or not settled, the client typically does not reimburse the attorney for the expenses.
A bad medical outcome doesn’t necessarily equate to a winnable malpractice case.
“If an attorney chooses unwisely, either a case with good potential will be lost, or an unmeritorious case will tie the attorney up for long periods of time and at great expense,” Poole says.
Either way, the ED chart is the core of every malpractice lawsuit against an EP.
“The records can be a sword or a shield for an emergency department physician,” Poole adds. “The chart needs to be as specific as possible.”
Claimants must prove several elements to sustain a claim for medical malpractice against an EP.
“If any of the elements are missing, the jury is instructed to find for the defendant,” Poole says. Here are some of the elements:
• A doctor-patient relationship existed. Usually, this is easy to establish, since it’s demonstrated when a physician examined and/or treated the patient in the ED.
“Liability for an emergency physician may also lie outside the emergency department door,” Poole notes.
This can be true in the case of a patient transported under protocol or radio contact by EMS personnel, or for patients who are given advice over the phone. “Once an ED physician is involved in the decision to have a patient transferred to the ED, the patient becomes his liability,” Poole says.
This is true regardless of whether the patient arrived by ambulance.
• The care provided was negligent. “In Connecticut, any claim regarding a deviation in the standard of care would have to be substantiated by testimony of a medical expert who is also specifically trained as an emergency physician,” Poole notes.
• There was a causal connection between the care provided in the ED and the harm that was suffered. “Causation in a medical malpractice case is not just cause and effect,” Poole adds.
It is also proving that the deviation from the standard of care was the direct cause of the injury, and that it was preventable. “It is not enough to only prove that the emergency physician made a mistake,” Poole cautions.
• The patient was harmed. The plaintiff may have undergone additional medical treatment due to a misdiagnosis, lost wages, or there may be other effects on the claimant’s life, including pain and suffering.
“A plaintiff’s attorney will always think twice if the damages resulting from the injury are too small to justify the time and expense of litigating the claim,” Poole adds.
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jesse Saffron (Editor), and Terrey L. Hatcher (Editorial Group Manager).